*1 MONTANA, STATE OF Aрpellee, Plaintiff CHAFEE, MAE CHELSEA Appellant. Defendant DA 13-0332. No. 23, 2014. July on Briefs Submitted 19, 2014. August Decided MT 226.
For C. Montana Krauss, General, M. Attorney Helena; Jonathan Assistant Fred Donovan, Valkenburg, County Van Attorney, Missoula Shaun County Deputy Attorney, Missoula. Opinion
JUSTICE COTTER delivered the of the Court. appeals Mae by jury ¶1 Chelsea Chafee her conviction a in the Fourth Court, arson, County, Judicial Missoula of accountability District for accountability theft, a felony, felony. and for a We reverse and remand for further proceedings Opinion. consistent with this on appeal We restate the issues ¶2 as follows: Was ¶3 when he a “mere ineffective failed object instruction and evidence other bad failed acts? Is ¶4 entitled to a new on the prosecutorial trial basis Chafee misconduct? Is entitled to new upon ¶5 а trial based the cumulative error Chafee doctrine?
FACTUAL AND PROCEDURAL BACKGROUND On the morning of October County Missoula law report enforcement officers responded burning of a on vehicle Pattee Canyon Drive. The owners of vehicle called 9-1-1 after vehicle, their approaching fire, unattended noticing it was on and observing green a quickly away. SUV drive Approximately an hour later, stopped occuрied by officers a vehicle and Chafee Antonio Robinson. Chafee sat in the driver’s seat. Robinson and Chafee were questioned by the eventually officers and were arrested. On October 25,2011, charged the State Chafee accountability information with arson, felony, 45-6-103, -2-302, for MCA, a violation of and §§ 45-6-301(8) accountability theft, for felony, a in violation of -2- §§ charged MCA. Robinson was with arson and theft. He subsequently pleaded guilty charges. and was sentenced those for trial, Prior to the State proposed jury submitted instructions. Defense counsel offered instructions. Trial commenced January 2, 2013, day. into the went next Robinson testified that According over, near the vehicle. pulled request, at his victims’ gain entry tried to Robinson, he then Chafee’s vehicle and exited locked, Robinson smashed the doors were the other vehicle. Bеcause unloading the car’s spent He 10-15 minutes with rock. window He then lit the car on loading into Chafee’s vehicle. contents and them actions testified his were fire and told Chafee to drive. Robinson in the did not crimes. impulsive, participate and that Chafee Russell, State, Chafee had for the testified that Jeffrey a witness Russell, According crimes him. Chafee stated described the into the because drinking had and brоke vehicle Robinson been Chafee fit the just something to do.” Russell testified that “it was lighter fluid. Chafee’s counsel on fire with Coleman fuel vehicle mad at Chafee during that Russell was suggested cross-examination in at for for unauthorized use turning stealing him work food and fired, and that he was computer, being which resulted Russell “willing get jail.” During lie here her thrown in State’s redirect, in the that Chafee was also involved Russell testified alleged role The later referenced Chafee’s workplace prosecutor theft. during argument. his “workplace in the theft” jurors get “to in touch closing, prosecutor In his asked heart, *3 center, soul, your own and ask yourself, your your with own own telling jurors they “get in yourself what is the truth?” After couldn’t right and what is you touch with... the essence of what know is true” Chafee, acquit objected. then defense counsel The District Court and objection, “argument.” The calling the comments overruled asking you look stating: everything ended “I’m to at and prosecutor consider, you use that the defense doesn’t want to those attributes sense, you is true. not you like common like what most And will believe in that and that this not involved be able do conclude defendant was case.” guilty found Chafee of both counts. January On ten-year The District Court sentenced Chafee two concurrent Corrections, Department eight commitments with the of each suspended. timely years appealed her conviction.
STANDARDS OF REVIEW of “Only ineffective assistance counsel claims are record-based Ugalde, State v. 308, 28,372 on direct appeal.” ¶ considered omitted). (citations “Tothe such P.3d 772 extent claims reviewable, law fact they questions mixed of that we present (citations dе novo.” and internal review omitted). closing in argument We consider statements the context of the argument rulings objections
entire and review a district court’s Cooksey, for abuse of discretion. content (citations omitted). 226, 40, 346, MT P.3d 1174 A timely objection closing argument must make a objection Cooksey, statements or the deemed to be waived. 40¶ (citation omitted). however, may, We such an under review issue “in plain imрlicate error doctrine those situations that a defendant’s failing rights fundamental constitutional when the alleged review miscarriage justice, error result in a of manifest leave unsettled proceedings, the fundamental fairness compromise integrity judicial Walton, process.” State v. 10, MT internal quotation marks error discretionary, Plain review is and we (citation omitted). Walton, on a apply casе-by-case basis. 10¶
DISCUSSION he ¶13 Was when failed ineffective object instruction and to evidence other bad failed acts? that, theory The defense though offered Chafee at trial was she present crimes, had been when Robinson committed the she had remained the vehicle and not participated any way. had In other words, “merely present,” she was any did commit crime. Defense counsel closing argumеnt his absolutely
there is anything evidence that Chelsea did while rifling through Antonio Robinson was the car putting the stuff into her car. will You not find anything instructions that a says person sitting there, who’s any duty has to run away, any duty duty away, has to drive has to do anything. He requires plan “[the law] stressed that she or agree with Mr. offense, Robinson commit this and that actually aiding she’s him. She anything didn’t do to aid him. She sat there. There’s no requirement affirmatively under the lаw anything.” do *4 Though argued defense counsel that mere presence was insufficient to that Chafee crimes, establish was involved in the he following failed to offer the jury standard approved by one correctly Court as of the instructions that adequately instructs on jury accountability, the the law of Kills Top, on (1990): a knowledge that of the crime and Mere at the scene presence that the to estаblish being are not sufficient crime is committed you must responsible, crime. To be was involved in the a defendant was doubt beyond find reasonable knowing spectator. merely a participant and a failure to offer argues that her counsel’s On appeal, or instruction sound not based on reasonable was fair right her trial. prejudiced and that professional judgment, request that defense Counsel’s failure The State counters because the evidence performance, “was not deficient instruction aid, actions to positive involvement and Chafee’s direct demonstrated abet, acts.” and facilitate Robinson’s criminal promote, guaranteed A of counsel is right defendant’s effective assistance the United States Sixth and Fourteenth Amendments by the Constitution, II, and Article Section 24 of Montana Cоnstitution. of an assistance of counsel reaching
Before the merits ineffective first whether the appeal, claim in a direct we must determine allegations appeal the Court on or whether the properly before petition in a for relief post-conviction claim should be raised 46-21-101, pursuant MCA. § omitted). (citation and internal We will
Ugatde, ¶ 65 appeal a if it to matters outside not address claim on relates (citation record, omitted), unnecessary in the unless it “why” perform alleged first instance to ask counsel did or did not as an Kougl, and seek answer reference the record. State 14-15, For ¶¶ unnecessary example, “why” performed it is to ask as he did justification” “no plausible when there is for defense counsel’s action Kougl, inaction. ¶ 15. noted, jury As defense counsel conviction; аt presence support
mere the scene was insufficient however, instruction would have jury he failed to legally The jury informed the that his correct. capitalize by arguing prosecutor was able to this omission “[ejven vehicle, if out guilty got never verdict because she let just sitting there. She sat there while she Antonio wasn’t He also told the up Robinson use her vehicle load this stolen stuff.” obligation mess, “imposes the law get when into people something -undo had done.” These they on them to do what directly refuted had defense counsel offered arguments could havebeen circumstances, Under these there was omitted instruction. *5 272 justification for of
plausible the failure defense counsel to offer the “mere presence” jury instruction. of analyze We Chafee’s claim ineffective assistance of test in two-part Supreme
under the set forth the U.S. Court (1984). Washington, v. Ugalde, Strickland 668,104 466 U.S. S. Ct. 2052 “(1) prove 66. A performance defendant must both: that counsel's ¶ (2) deficient; and performance that counsel’s deficient prejudiced the (citation omitted). Ugalde, falling defense.” 66 Performance an ¶ below objective of prevailing standard reasonableness measured under professional light surrounding norms and is circumstances (citation omitted). performance. Ugalde, deficient 75 We “indulgle] ¶ a strong presumption performance that counsel's falls within the wide (citation range ofreasonable professional assistance.” ¶ omitted). quotation However, internal marks “the [a] failure potentially beneficial when that is not of part failure strategy, trial an counsel’s is error so serious that it falls outside the range competеnce required in criminal cases.” Garrett attorneys (citation State, v. 197, 24, 165, 119 P.3d 55 ¶ internal The law is presence well established that “mere at the scene enough
of a crime accountability, [although] establish need part accused not take an active overt criminal acts to be Miller, v. acts.” State adjudged criminally 497, hable for the 231 Mont. (1988) 511,757 Bradford, 1275,1284 (quoting State (1984)). 924, Additionally, mere presence while and the failure disapprove or oppose another’s of an commission offense are insufficient charge, sustain an accountability these factors maybe considered jray, along circumstances, other which indicate way whether accused some or aided abetted the principal in the commission of the crime. Spang, 43, MT P.3d 727
(overruled (citation omitted). in part grounds) on other We are not in this reviewing sufficiency case of evidence to sustain Chafee’s conviction, but the failure of counsel to offer an instruction that would jury allow the to consider “these factors.” We conclude that defense counsel’s failure to offer “potentially beneficial instruction” constituted performance deficient under the first prong of Strickland because there was no tacticаl reason for his failure submit “mere presence” theory instruction when his of the case mere presence was that at the scene was insufficient support fell conduct below that counsel’s likewise conclude conviction. We Garrett, see ¶¶ But of reasonableness.” “objective standard omitted) (“[W]hat (citations judge omitted); Kougl, see 26 law, what the the force while necessarily carries jury tells the not,” arguments do does counsel tells adversarial instructions.). properjury not substitute for sufficient evidence there was argues The Dissent presence” not a “mere presented to call into whether Dissent, 36. This appropriate. have been instruction would ofthe appropriateness may have considered presumes that counsel offering light of the evidence against and decidеd instruction *6 the argument by is that it is belied with this presented. problem The As Chafee’s defense. presented counsel manner defense which sitting argued simply client was that his indicated did offense, and that she not do committed his there while Robinson told of the crime. Counsel further anything to aid in the commission affirmatively law that requirement “There’s no under the jury: the her attorney urged jury acquit the to on this anything.” do presence that Chаfee’s mainstay Because the the defense was basis. convict, plausible can at not there be the scene was sufficient have very jury the instruction that would failing reason submit argument. lent the force of law to counsel’s sufficient We address whether Chafee has established ¶23 now prejudice prong prejudice the of Strickland. “Sufficient under second requires ... the defendant demonstrate that reasonable that, error, unprofessional possibility exists but for counsel’s the result (citation proceeding have different.” 70¶ would been omitted). A must undermine and internal required confidence the outcome but is not to demonstrate that she (citation omitted). acquitted. Kougl, would have been closing arguments, the presentation In its of evidence State ¶24 present át did not take emphasized that Chafee was the scene and prevent report By the or to it to law enforcement. action crime inadequate performance, deprived reason of her Chafee was counsel’s jury of the chance to have the conclude under well-settled law that she guilty charged simply present not of the crimes because she was the “mere at the Had trial counsel offered crime scene. the of this case have been result Hence, prejudice is apparent favorable Chafee. here. failure to offer the Because we conclude that defense counsel's
¶25 trial, need not reach Chafee’s jury instruction warrants new we her he arguments object counsel was ineffective when failed to comments object evidence of bad and failed to State’s other acts the сredibility. about Russell’s prosecutorial Is entitled to a new trial on the basis Chafee
misconduct? grounds, case on feel Though reversing we alternate we briefly
constrained to address Chafee’s that the prosecutor improperly jurors the their on told base decision factors other than argues the law and evidence. The State the comments did they discussing constitute error because made in context of were disagree. the evidence presented prosecutor its evaluation. We The urged hearts, souls, centers, jurors rely upon their and essences However, in making their decision. the instructions direct decide the case the basis of the evidence and the law. We measure prosecutorial misconduct reference to established norms conduct, professional omittеd), Ugalde, 43 “[argument urging jury to upon decide the matter based factors other than [by those it improper.” court] is instructed to consider Sandoval 2000). (9th Calderon, 241 F.3d Cir. conclude We cited prosecutor statements were improper. 3. Is entitled to a new trial based upon cumulative error? We decline to address the of whether Chafee is entitled pursuant new trial to the cumulative error given doctrine оur
resolution of One. Issue
CONCLUSION foregoing, judgment ¶30 Based on the we vacate the of the District Court and remand this case for a new trial on the charges accountability for accountability theft and for arson. WHEAT,
JUSTICE SHEA and BAKER concur. RICE,
JUSTICE dissenting. I from ¶31 dissent the Court’s conclusion 1 the in Issue allegations of IAC are properly before this Court on direct appeal. strong “There a presumption is conduct counsel's falls within the range wide reasonable ... prоfessional conduct. ‘The that, the presumption circumstances, must overcome under the the ” challenged might strategy.’ action be considered sound v. trial State 90, Jefferson, 48, 146, MT 2003 315 Mont. P.3d 641 (quoting ¶ 69 668, 689, 104 Washington, 2052, Strickland v. U.S. 466 S. Ct. 2065 (1984) (internal omitted)). Ordinarily, appeal the record on acted, must adequately why act, document or failed to ain
275 for determine whether maimer in this Court particular order professional for reasоnable standard action falls below the counsel’s ask However, unnecessary it Jefferson, 49. rare cases ¶ conduct. “[wjhat cases, instance. matters is that there In such “why”in the first Kougl, State for counsel did.” v. any legitimate not be reason what could added). 243, 6,97 When 15,323 (emphasis P.3d 1095 2004 MT Mont. ¶ actual, for necessarily justification plausible, a but not there is the action, Court is to dismiss proper the action for this counsel’s relief the defendant seek appeal prejudice without and allow hearing. Kougl, 19. through postconviction relief ¶ no “legitimate not this case satisfies the I am convinced “mere exception request presence” for failure to reason” counsel’s exception utilized this prior instruction. Unlike our cases where we proposed jury IAC appeal review direct claims of for failure Chafee cannot establish that she was entitled to a (failure to an presence” Kougl, request instruction. See 20 instruction ¶ clearly accomplices’testimony with IACbecause suspicion to view and, pursuant to 26-1- undisputedly accomplices § witnesses were MCA, 303(4), give “if trial had been asked to a ‘viewedwith court had to jury, instruction to the have honor distrust’ would 350, Rose, 342, 18, MT 292 Mont. 972 P.2d request”); State v. 1998 ¶ (State juiy apрeal conceded on that a “viewed with distrust” We have denied direct appropriate). instruction would have been claims of IAC where we could not conclude that there was appeal request reason” for the failure of counsel to “legitimate Hubbel, 31, 184, 20 21, See v. 2001 MT 304 Mont. ¶ instruction. State 111, Hendricks, part grounds, other v. P.3d overruled State 114, 223, 177, 1268; Green, MT 317 Mont. 75 P.3d State v. 2009 MT 141, 205 22, P.3d Court, 19, Opinion proposition for the The сase cited juiy objectively to offer a instruction is potentially failure beneficia 197, attorney, State, for 2005 MT unreasonable conduct an Garrett rule, 165, 55, Mont. 119 P.3d and the case therein cited 165, 306 130,32 724, Rogers, MT Mont. P.3d overruled 140, 20, grounds, State, 13, part on other Whitlow v. 2008 MT ¶¶ relief that did postconviction proceedings appeal. analyze propriety not of IAC claims made on direct “ argues, part As the Statе ‘the accused need take active ” acts,’ criminally adjudged criminal acts to liable for the overt be Lantis, quoting State v. aiding accountability or abetting “accused[’]s
1169. An act of under the *8 nature; only statute be in or promote need not criminal it need Lantis, see 39; 45-2-302(3), facilitate commission of the crime.” § presence” MCA. While “mere at the scene of the crime is not enough Johnston, impute liability, see State v. P.2d (1994) (defendant in merely present passenger when discovered seat vehicle, key, of a building burglarized by outside been had another), accomplice being “[o]ne present become an act, joining by aiding abetting in the criminal another its knowledge voluntary commission ... but actions essential Nordahl, guilt.” 513, 517, 679 order to impute (1984) (quotation I believe there was sufficient evidence to call into presented whеther not “mere presence” instruction would have been appropriate. argued presented The State evidence that Chafee knowingly allowed Robinson load stolen into car goods her repeatedly over course of approximately 10 to minutes. Once Robinson had finished items from retrieving setting the vehicle and fire, drove goods away Robinson and the stolen from Upon questioned scene of being the crime. police, Chafee lied protect both herself and Such Robinson. evidence shows more than presence” while a In response crime committed. to this dissent, the Court relies on closing argument, regardless Chaffee’s but argued closing, what Chaffee she was not entitled evidence, supported by instruction that was not and her counsel failing could not request be ineffеctive for an instruction to which Chaffee anything, was not entitled. If the Court should conclude that prejudiced Chaffee was not lack of by the as counsel point anyway. ample There reason here guess second counsel. I would dismiss the appeal, essentially affirming judgment, without prejudice right to Chaffee’s postconviction to seek relief on her IAC claims. As to Chafee’s other claims of error on I appeal, would decline to exercise error plain review and affirm.
JUSTICE joins dissenting McKINNON Opinion JUSTICE RICE.